Thank you for your interest in the Diagon website, operated by Diagon Technologies, Inc. (“Diagon”) and located at www.diagon.ai (the “Site”). Please carefully read the following Terms and Conditions and all other rules and guidelines that we may communicate to you from time to time through the Site, including Diagon’s Privacy Policy, which are all incorporated herein by reference (collectively, the “Terms”). These Terms shall govern your use of any services or other features made available to you through the Site, including the Diagon Marketplace.

GENERAL TERMS

Overview

1. ‍Binding Contract. These Terms create a binding legal contract between you and Diagon. By accessing, viewing, or availing yourself of the Site in any manner (including by registering to purchase OEM Equipment (defined below) through the Site), you certify that you have read, understand, and agree to be legally bound by these Terms in connection with your use of the Site. The Site is only available to users at least 18 years of age.  If you do not agree to these Terms or are younger than 18 years old, you should immediately terminate your use of and leave the Site.
2. ‍Authorized Representative. If you are registering or using the Site on behalf of a company, entity, or organization (“Company”) then you represent and warrant that you are the Company’s authorized representative with authority to bind it to these Terms, and you agree on its behalf to be bound by these Terms.  In such a case, “you” in these terms shall be construed to mean you, your Company, and any other individual that uses the Site on your Company’s behalf or with their authority or consent. 
3. ‍Purpose of Site. The material that appears on the Sites is for general informational purposes only. While Diagon has endeavored to make the Site as useful as possible, please note that the Site may contain errors and omissions. The Site includes materials and information collected from third-party sources that Diagon may not have evaluated or reviewed. Diagon makes no assurances or guarantees regarding the accuracy, completeness, timeliness, or reliability of any of the materials or information on the Site, and you should not rely on it without independent verification.
4. ‍Modifications. Diagon may at any time revise these Terms. Your continued use of the Site following the changes to these Terms will be considered your consent to those changes. As you are bound by any such revisions, you should periodically visit this page to review the then-current terms. If you have any questions concerning these Terms, please contact Diagon at info@diagon.ai.

Access

Subject to your full and ongoing compliance with these Terms, Diagon grants you permission to access and use the Site as provided herein and consistent with its intended features, provided you may not (i) reproduce, modify, publicly display, publicly perform, or distribute any part of the Site or its Contents, and (ii) you may not engage in any prohibited uses described below.

Accounts

1. Account Information. To access some features of the Site, you will have to create an account. You represent and warrant that the information you provide through the Site (including through any registration features, along with any subsequent changes to such information) will be truthful, accurate, timely, and complete. You will also ensure that this information remains accurate and up-to-date at all times.
2. ‍Access Credentials. Registered users will be provided with login credentials, including a username and password. Such credentials are personal to you. You may not share them or permit access to your account by any third party. You are responsible for (i) maintaining the confidentiality of your login credentials and (ii) all activity that occurs under your account. You will notify Diagon immediately at privacy@diagon.ai if you suspect your login credentials have been compromised or your account has been accessed by a third party. You remain liable for any losses or damages (to you, Diagon, or any others) resulting from any unauthorized use of your account that occurred before notifying Diagon that your account was compromised.

Prohibited Uses

1. Restrictions. You agree not to use the Site or any features thereof for any unlawful purpose or in any way that might harm, damage, or disparage any other party. Without limiting the proceeding sentence, you agree that you will not, do or attempt to:
   1. Copy, sell, trade, resell, distribute, or exploit, any part of the Site or any Site Content, for any purpose other than for your own internal purposes relating to the evaluation or purchase of Diagon’s products or services;
   2. Access or use the Site for any comparative or competitive research purposes;
   3. Remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Site or features that enforce limitations on the use of the Site or any content therein;
   4. Use any manual or automated means to access the Site, or to extract and/or compile content from the Site for any commercial purpose or otherwise;
   5. Create a false identity or impersonate another to mislead Diagon or others as to your identity;
   6. Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs; or
   7. Use the site in any manner that interferes with or disrupts the Site, networks, or servers connected to the Site.
2. Suspension. You acknowledge that Diagon may suspend or limit your access to the Site at any time and without notice for any actual or suspected breach of these Terms, violations of applicable laws, or for any other reason.

User Content

1. License. The Sites may allow you and other users to upload and publish information on the Site, which may include photographs, drawings, renderings, schematics, equipment specifications, documentation, and other content (“User Content”). To the extent you upload and publish any User Content to the Site, you grant Diagon a non-exclusive, worldwide, transferable, and sublicensable right to use, copy, modify, distribute, publish, and process such User Content both on the Site and by any other means and media now-known or later-developed (including for advertising, marketing, and other commercial purposes) without any further consent, notice or compensation to you or others. You represent and warrant that you own all rights, including copyright, in the User Content necessary to grant the license above.
2. Restrictions. When uploading or publishing User Content to the Site, you agree that you will not post or transmit:
   1. Material that is knowingly false or defamatory, inaccurate, libelous, tortuous, abusive, vulgar, hateful, racist, bigoted, sexist, harassing, threatening, inflammatory, obscene, profane, or sexually-oriented, invasive of a person’s privacy, or is otherwise objectionable, or in violation of any applicable law;
   2. Material that violates or infringes the rights of any other party, including, without limitation, rights of privacy, rights of publicity, copyright, trademark, or other intellectual property rights;
   3. Material that breaches another’s privacy, such as material that contains phone numbers, addresses, or other personal information;
   4. Material that contains advertisements or commercial solicitations or spam; or any other material that is unrelated to the context in which it is posted; or
   5. Material discussing illegal activities or linking to websites that deal with such activities.
3. Monitoring. Diagon may (but is not obligated to) monitor the Site to ensure compliance with applicable laws, respond to court orders or law enforcement requests, enforce these Terms, or protect the rights, property, or safety of users of the Site or the public.  Diagon reserves the right to remove any User Content and/or deny Site access to any users that violate these Terms, applicable laws, or for any other reason, at any time and without notice.
4. Assumption of Risk. You assume total responsibility and risk for your use of any User Content or interactive areas of the Site. You acknowledge that any User Content posted or transmitted through the Site represents the views of the author, and not of Diagon. You also acknowledge that your use of or reliance on such User Content is at your own risk. Diagon takes no responsibility and assumes no liability for any User Content uploaded or published to the Site.

Links

The Site may contain links or references to other websites, features, or services that are owned and operated by third parties (“Linked Content”).  These are provided for your convenience only. Diagon does not endorse and is not responsible for the content, the accuracy of the information, or the quality of products or services offered via Linked Content or the transactions you conduct or enter into with third parties through the Linked Content. Your use of any Linked Content is at your own risk, and subject to the terms and conditions and privacy and use policies of such third parties. Diagon encourages you to read the privacy policies and terms of use associated with any Linked Content.

Intellectual Property

1. Ownership. The Site is owned and operated by Diagon. The visual interfaces, graphics, listing information, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Site provided by Diagon ("Site Content") are protected by copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property laws. All Site Content is the copyrighted property of Diagon or third parties. All trademarks, service marks, and trade names are proprietary to Diagon and/or third parties. You understand that nothing herein shall be deemed or interpreted to grant you any right or license under any intellectual property rights of Diagon or any third party or give rise to any ownership or proprietary rights in or to any Site Content. Unauthorized reproduction or distribution of Site Content is strictly prohibited.
2. Feedback. You may wish to provide suggestions, recommendations, enhancement requests, and other feedback (collectively “Feedback”) to Diagon regarding the Site or Diagon’s products or services. Diagon is interested in Feedback regarding the features, functionality, performance, usability, user experience, and other aspects of the Site and the Diagon Marketplace. If you elect to provide Feedback, you acknowledge that Diagon shall receive a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate any of your Feedback without any compensation to you. Diagon is not obligated to implement or otherwise act upon any Feedback.

DISCLAIMERS

THE SITE (INCLUDING, WITHOUT LIMITATION, SITE CONTENT, OR ANY OTHER SERVICES, PRODUCTS, OR INFORMATION PROVIDED BY DIAGON), AND ANY OTHER SOFTWARE, SERVICES, APPLICATIONS, OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE (INCLUDING USER CONTENT AND LINKED CONTENT), ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", "WITH ALL FAULTS" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, CONCERNING THE SITE OR PRODUCT, SERVICES, OR CONTENT MADE AVAILABLE THROUGH THE SITE OR THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS THEREOF.

LIMITATION OF LIABILITY

IN NO EVENT WILL DIAGON, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH (I) YOUR USE OF THE SITE OR SITE CONTENT; (II) THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SITE OR ANY SITE CONTENT; (III) USER CONTENT OR LINKED CONTENT; OR (IV) CHOICES MADE BASED ON INFORMATION ACQUIRED THROUGH THE SITE (V) AND ANY ACCIDENTS OR UNEXPECTED EVENTS OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF DIAGON IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DIAGON, ITS OFFICERS, OR DIRECTORS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES OVER $1,000. 

FAIR ALLOCATION OF RISK

APPLICABLE LAW MAY NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND DIAGON, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND DIAGON, DIAGON'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT DIAGON WOULD NOT BE ABLE TO OFFER THE SITE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.

Indemnification

You will defend, indemnify, and hold harmless the Diagon from and against all judgments, liabilities, losses, settlements, damages, expenses, and costs (including reasonable attorneys’ fees) arising out of or resulting from claims, demands, actions, suits, and other proceedings made in connection with your use of the Site, breach of these Terms, or gross negligence, fraud or intentional misconduct.

Complaint Procedures

If you believe that any content on this Site violates your intellectual property or other rights, please send to us at complaints@diagon.ai a comprehensive detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your e-mail address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate and I have the full legal authority to make every such statement, representation, and assertion and to make and be granted any demand made in this message.”

Miscellaneous

1. General Compliance with Laws and Terms. You will comply with all applicable laws, rules, and regulations, and the Terms in connection with your use of the Site.
2. Governing Law. The Site, these Terms, and the relationship and rights and obligations of the parties concerning your use of the Site shall be governed solely and exclusively by the laws of the state of California, without regard to such state's choice of law rules and regardless of where you are located or received the Site or Site Content. You agree that any dispute (including any claim, counterclaim, or other action) arising out of or relating to any of these Terms or the Site shall be brought and adjudicated only in the Superior Court of San Francisco or the United States District Court for the Northern District of California, to the exclusion of all other venues and jurisdictions. You hereby agree to, do submit, and consent to the exclusive jurisdiction in such courts and personal jurisdiction in any such courts in California.
3. Merger. These Terms between you and Diagon relating to the subject matter herein, and supersede all previous communications, representations, understandings, and agreements, either oral or written, between you and Diagon concerning said subject matter. These Terms shall not be modified or waived except in a writing signed by both parties, or by a change to these Terms by Diagon as provided in Subsection 4 of the Overview Section above.
4. Severability. In the event any of the provisions of these Terms are held unenforceable or invalid by a court of competent jurisdiction, such provisions shall be deemed severed, and the remaining provisions thereof shall remain in full force and effect.
5. No Waiver. The failure of Diagon to enforce, in any one or more instances, any of the provisions herein shall not be construed as a waiver of the prior or future performance of any such terms or conditions.
6. No Agency Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Diagon as a result of these Terms or your use of the Site.‍
7. No Other Relationship. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Diagon other than pursuant to these Terms.
8. No Assignment. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Diagon without restriction, including by operation of law, merger, or sale of all or substantially all of the assets to which these Terms pertain. Any assignment attempted to be made in violation of these Terms shall be void. The headings and captions in these Terms are used for convenience only and are not to be considered in interpreting the Terms.

DIAGON MARKETPLACE TERMS

The following terms and conditions shall apply to the Diagon Marketplace made available through the Site. To the extent there is any conflict between these Diagon Marketplace Terms and the General Terms, these Diagon Marketplace Terms shall govern with respect to the provision of Diagon Marketplace.

Equipment Listings

1. Listings. The Diagon Marketplace feature of the Site contains listings of various equipment (“OEM Equipment”) that are being offered for sale by OEM suppliers (“Suppliers”) that are not affiliated with Diagon. Diagon offers All OEM Equipment as an agent for the applicable Supplier and not on behalf of Diagon itself. Diagon shall not have any liability or responsibility for any act, omission, default, or failure by any Supplier.
2. Pricing. The pricing listed in the Diagon Marketplace is for the OEM Equipment hardware only. It does not include installation, warranty, shipping, or installation. In certain cases, Diagon may provide these services to you as Value-Added Services described in the "Value-Added Services" Section of these Diagon Marketplace Terms.
3. Offers. All OEM Equipment sales shall be consummated pursuant to a separate, written contract between you and the Supplier (or Diagon, acting as an agent of the Supplier). When you click the “Make an Offer” button, you will be contacted by a Diagon agent, who will initiate the sales process. Nothing on the Site or in these Terms is intended to create a binding offer or commitment by Seller, Diagon, or you to consummate any transaction or negotiate or enter into an agreement with respect to any OEM Equipment.
4. Diagon Rights. Diagon reserves the right, in its sole discretion, to (a) remove listings for OEM Equipment at any time and for any reason, (b) reject or refuse any offer from any party for the OEM Equipment, (d) revoke your permission to make an offer on a certain piece of OEM Equipment or use the Site, (e) terminate your account, or (f) terminate any sale negotiations if Diagon determines in its sole discretion that it cannot complete the transaction for any reason. You agree that Diagon shall not have any liability whatsoever to you for the exercise of any of the foregoing rights, or for any errors in execution or failure to respond to any offers or execute any sales, regardless of circumstances or events of any kind.
5. Descriptions of OEM Equipment. Any written descriptions of the OEM Equipment or related information on the Site, oral descriptions from Diagon personnel, bills of sale or invoice, or statements or affirmations made by or on behalf of Diagon, including any estimated capacities or other key metrics referenced in OEM Equipment listings, are only statements of opinion and not statements of fact. They do not create or constitute representations or warranties of any kind by Diagon or the Seller. You expressly acknowledge and agree that you shall not rely upon any of such descriptions, statements, affirmations, information, or materials for any purpose, and that none of the foregoing are a part of the basis of the bargain of the purchase and sale of any OEM Equipment that you may later consummate with the Supplier or Diagon.
6. Inspection. Diagon does not assume any obligation or responsibility to inspect any OEM Equipment before its listing on the Site or its final sale to you. You are solely responsible for inspecting the OEM Equipment and conducting any other diligence that may be necessary or advisable, including soliciting further information on the condition, title, value, quality, authenticity, description, and provenance; determining whether or not any OEM Equipment fits your needs and otherwise complies with any applicable federal, state or other laws or regulations of any kind; and identifying any repairs or replacement parts and otherwise ascertaining completeness.

DISCLAIMERS

NEITHER DIAGON NOR THE SELLER SHALL HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ERRORS, OMISSIONS AND/OR INACCURACIES IN ANY DESCRIPTION, STATEMENTS, DOCUMENTS OR MATERIALS, INCLUDING IN ANY PUBLISHED MATERIALS, REGARDLESS OF WHEN MADE. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE NOT ENTITLED TO RELY AND YOU AGREE NOT TO RELY, UPON ANY OF SUCH ORAL OR WRITTEN DESCRIPTIONS, STATEMENTS, INFORMATION, OR MATERIALS OF ANY KIND FOR ANY PURPOSE.

Value-Added Services

Diagon may provide additional value-added services related to the OEM Equipment, such as shipping, logistics, equipment financing, and extended warranties (“Value-Added Services”). Any such Value-Added Services shall be purchased under a separate, written contract between you and Diagon.

Compliance with Law

1. General. By using or registering to use the Diagon Marketplace, or making an offer to purchase any OEM Equipment, you expressly represent and warrant that you are and will comply with all applicable laws, rules, and regulations, and the Terms.  Further, you expressly represent, warrant, and covenant that:
   1. You are not subject to any economic sanctions and export controls restrictions administered or enforced by any relevant sanctions authority (including the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security (BIS), the United Nations, the European Union and in the United Kingdom (UK), Her Majesty’s Treasury’s Office of Financial Sanctions Implementation (OFSI) or the UK Export Control Joint Unit (ECJU)) (“Sanctions”) or owned, partially owned or controlled by an individual or entity subject to Sanctions, and you have not been charged with or convicted of money laundering, terrorism or other crimes (whether in the United States or elsewhere);
   2. Funds used for your purchase of OEM Equipment are not connected with or derived from any criminal activity (whether in the United States or elsewhere);
   3. Funds used for your purchase of OEM Equipment will not be transferred from or otherwise involved in any financial transaction related to the purchase, any financial institution subject to Sanctions or owned, partially owned, or controlled by an individual or entity subject to Sanctions; and
   4. Any OEM Equipment purchased is not being, and shall not be, transferred to or used in any jurisdiction in contravention of any Sanctions or purchased or to be used in any way connected to the facilitation of breaches of applicable tax, money-laundering or anti-terrorism laws and regulations.
2. Assistance. You agree to provide all information and assistance reasonably requested by Diagon to comply with Diagon’s Anti-Money Laundering processes and to comply with any Anti-Money Laundering laws and regulations.‍
3. Third-Party Purchases. If you are purchasing OEM Equipment on behalf of another party (“Third Party”), you represent, warrant, and covenant that you have conducted sufficient due diligence into such Third Party as to verify its compliance with this "Compliance with Law" Section of these Diagon Marketplace Terms. You are fully responsible for the acts and omissions of such Third Party, and any breaches of these Terms (including this "Compliance with Law" Section) by such Third Party shall be deemed to be a breach by you.

Attorneys’ Fees

1. Enforcement Costs. If Diagon engages counsel to assist it in enforcing any part of the Terms concerning your use of the Diagon Marketplace feature or making an offer to purchase any OEM Equipment, you shall be responsible for all reasonable fees (including attorneys’ fees), costs and all expenses incurred by Diagon (including costs and all expenses related to evaluating, analyzing, assessing, enforcing, preparing for and conducting arbitration or litigation of any kind or nature), whether or not legal proceedings are commenced.
2. Fees and Costs. If proceedings (including arbitration proceedings) are initiated that relate to or in any way arise out of the Terms or making any offer to purchase any OEM Equipment through the SIte, then the prevailing party shall recover its reasonable attorneys’ fees, costs, and expenses; provided, however, you shall not be entitled to recover on any such claim for attorneys’ fees (even if you have prevailed on such claim) unless you have first presented the claim directly to Diagon and allowed for a reasonable opportunity and period to mediate (and participate in such mediation of) such claim before initiating legal action against Diagon.

BINDING ARBITRATION

You agree that any dispute (including any claim, counterclaim, or other action) or controversy arising out of or relating to your use of the Diagon Marketplace, or making an offer to purchase any OEM Equipment, or any of the associated Terms shall be brought and determined by arbitration in San Francisco, California before one arbitrator. The arbitration shall be administered by JAMS under its Comprehensive Arbitration Rules and Procedures or JAMS’ Streamlined Arbitration Rules and Procedures. The determination of the scope or applicability of these Diagon Marketplace Terms to arbitrate shall be solely determined by JAMS. Judgment on an award may be entered in any court having jurisdiction. If any party seeks relief under these Diagon Marketplace Terms in any venue other than through JAMS (including federal or state court), then the complaining party shall pay all costs, fees, including attorneys’ fees, and expenses of the responding party. Each party shall pay its proportionate share of arbitrator fees and expenses, including reasonable attorneys’ fees, subject to Subsection 2 of the "Attorneys’ Fees" Section of these Diagon Marketplace Terms. You waive your right to a jury trial and the right of appeal. If either party files any claim against any shareholder, employee, officer, director, member, manager, representative, principal, or agent of the other party, then the parties hereby agree that any such claims shall also be subject to this "Binding Arbitration" Section. By using or registering to use the Diagon Marketplace feature, or making an offer to purchase any Equipment, you hereby submit to the jurisdiction of state and federal courts in California.

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